Exhibit 99.1
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THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME,
ON __________, 2005 UNLESS EXTENDED (THE "EXPIRATION DATE").
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XXXXXXX ENTERPRISES, INC.
LETTER OF TRANSMITTAL
FOR
OFFER TO EXCHANGE
UP TO $200,000,000 REGISTERED 6 1/4% SENIOR NOTES DUE 2013
FOR
ANY AND ALL OUTSTANDING UNREGISTERED 6 1/4% SENIOR NOTES DUE 2013
THE EXCHANGE AGENT
FOR THE EXCHANGE OFFER IS:
U.S. BANK NATIONAL ASSOCIATION
For Delivery by Mail/
Hand Delivery/Overnight Delivery:
U.S. Bank National Association
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, XX 00000-0000
Attn: Specialized Finance Department
By Facsimile Transmission (for eligible institutions only):
(000) 000-0000
To Confirm Receipt:
(000) 000-0000
For Information Call:
(000) 000-0000
(Originals of all documents sent by facsimile should be sent promptly by
registered or certified mail, by hand or by overnight delivery service.)
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE TRANSMISSION TO A NUMBER
OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. THE
INSTRUCTIONS CONTAINED HEREIN SHOULD BE READ CAREFULLY BEFORE THIS LETTER OF
TRANSMITTAL IS COMPLETED. DO NOT DELIVER THIS LETTER OF TRANSMITTAL TO XXXXXXX
ENTERPRISES, INC.
By completing this letter of transmittal ("Letter of Transmittal"), you
acknowledge that you have received and reviewed the prospectus dated__________,
2005 (the "Prospectus") of Xxxxxxx Enterprises, Inc. ("Xxxxxxx") and this Letter
of Transmittal, which together constitute the "Exchange Offer." This Letter of
Transmittal and the Prospectus have been delivered to you in connection with
Xxxxxxx'x offer to exchange $200,000,000 in aggregate principal amount of its
6 1/4% Senior Notes due 2013 (the "Exchange Notes"), which have been registered
under the Securities Act of 1933, as amended (the "Securities Act") for the same
amount of its outstanding unregistered 6 1/4% Senior Notes due 2013 (the
"Outstanding Notes").
Xxxxxxx reserves the right, at any time or from time to time, to extend
the Exchange Offer at its discretion, in which event the term "Expiration Date"
shall mean the latest date to which the Exchange Offer is extended. Xxxxxxx
shall timely notify the Exchange Agent of any extension by written notice.
This Letter of Transmittal is to be completed by a Holder (this term is
defined below) of Outstanding Notes if:
(1) the Holder is delivering certificates for Outstanding Notes with
this document, or
(2) the tender of certificates for Outstanding Notes will be made by
book-entry transfer to the account maintained by U.S. Bank National
Association, the exchange agent (the "Exchange Agent") for these
notes, at The Depository Trust Company ("DTC") according to the
procedures described in the Prospectus under the heading "Exchange
Offer - Procedures for Tendering." Please note that delivery of
documents required by this Letter of Transmittal to DTC does not
constitute delivery to the Exchange Agent.
You must tender your Outstanding Notes according to the guaranteed
delivery procedures described in this document if:
(1) your Outstanding Notes are not immediately available;
(2) you cannot deliver your Outstanding Notes, this Letter of
Transmittal and all required documents to the Exchange Agent on or
before the Expiration Date; or
(3) you are unable to obtain confirmation of a book-entry tender of your
Outstanding Notes into the Exchange Agent's account at DTC on or
before the Expiration Date.
More complete information about guaranteed delivery procedures is
contained in the Prospectus under the heading "Exchange Offer - Guaranteed
Delivery Procedures."
As used in this Letter of Transmittal, the term "Holder" means (1) any
person in whose name Outstanding Notes are registered on the books of Xxxxxxx,
(2) any other person who has obtained a properly executed bond power from the
registered Holder or (3) any person whose Outstanding Notes are held of record
by DTC who desires to deliver such notes by book-entry transfer at DTC. You
should use this Letter of Transmittal to indicate whether or not you would like
to participate in the Exchange Offer. If you decide to tender your Outstanding
Notes, you must complete this entire Letter of Transmittal.
PLEASE READ THE ENTIRE LETTER OF TRANSMITTAL AND THE PROSPECTUS CAREFULLY
BEFORE CHECKING ANY BOX BELOW. IF YOU HAVE QUESTIONS OR NEED HELP, OR IF YOU
WOULD LIKE ADDITIONAL COPIES OF THE PROSPECTUS AND THIS LETTER OF TRANSMITTAL,
YOU SHOULD CONTACT THE EXCHANGE AGENT AT (000) 000-0000 OR AT ITS ADDRESS SET
FORTH ABOVE.
List below the Outstanding Notes to which this Letter of Transmittal relates. If
the space below is inadequate, list the registered numbers and principal amount
on a separate signed schedule and affix the list to this Letter of Transmittal.
DESCRIPTION OF OUTSTANDING NOTES TENDERED
Certificate
Numbers Aggregate Principal Principal
Name(s) and Address(es) of Registered Owner(s) as (it/they) of Outstanding Amount Represented Amount
appear(s) on the Outstanding Notes Notes* by Outstanding Notes Tendered
----------------------------------------------------------- ------ -------------------- --------
____________ _______________ ________
____________ _______________ ________
____________ _______________ ________
____________ _______________ ________
Total Principal
Amount of
Outstanding
Notes Tendered**
(If additional space is required, attach a continuation sheet in substantially
the above form.)
* Need not be completed by book-entry holders.
** Unless otherwise indicated, any tendering holder of Outstanding Notes will
be deemed to have tendered the entire aggregate principal amount
represented by such Outstanding Notes. All tenders must be in integral
multiples of $1,000.
METHOD OF DELIVERY
[ ] Check here if tendered Outstanding Notes are enclosed herewith.
[ ] Check here if tendered Outstanding Notes are being delivered by book-entry
transfer made to an account maintained by the Exchange Agent with a
Book-Entry Transfer Facility and complete the following:
Name of Tendering Institution: ............................
Account Number: ...........................................
Transaction Code Number: ..................................
[ ] Check here if tendered Outstanding Notes are being delivered pursuant to a
Notice of Guaranteed Delivery and complete the following:
Name(s) of Registered Holder(s): ..........................
...........................................................
Date of Execution of Notice of Guaranteed Delivery:........
Window Ticket Number (if available):.......................
Name of Eligible Institution that guaranteed delivery: ...
...........................................................
Account Number (if delivered by book-entry transfer): .....
SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
According to the terms and conditions of the Exchange Offer, I hereby
tender to Xxxxxxx the principal amount of Outstanding Notes indicated above. At
the time these notes are accepted by Xxxxxxx, and exchanged for the same
principal amount of Exchange Notes, I will sell, assign, and transfer to Xxxxxxx
all right, title and interest in and to the Outstanding Notes I have tendered. I
am aware that the Exchange Agent also acts as the agent of Xxxxxxx. By executing
this document, I irrevocably appoint the Exchange Agent as my agent and
attorney-in-fact for the tendered Outstanding Notes with full power of
substitution to:
1. deliver certificates for the Outstanding Notes, or transfer
ownership of the Outstanding Notes on the account books maintained
by DTC, to Xxxxxxx and deliver all accompanying evidences of
transfer and authenticity to Xxxxxxx, and
2. present the Outstanding Notes for transfer on the books of Xxxxxxx,
receive all benefits and exercise all rights of beneficial ownership
of these Outstanding Notes, according to the terms of the Exchange
Offer. The power of attorney granted in this paragraph is
irrevocable and coupled with an interest.
I represent and warrant that I have full power and authority to tender,
sell, assign, and transfer the Outstanding Notes that I am tendering. I
represent and warrant that Xxxxxxx will acquire good and unencumbered title to
the Outstanding Notes, free and clear of all liens, restrictions, charges and
encumbrances and that the Outstanding Notes will not be subject to any adverse
claim at the time Xxxxxxx acquires them. I further represent that:
1. any Exchange Notes I will acquire in exchange for the Outstanding
Notes I have tendered will be acquired in the ordinary course of
business;
2. I have not engaged in, do not intend to engage in, and have no
arrangement with any person to engage in, a distribution of any
Exchange Notes issued to me; and
3. I am not an "affiliate" (as defined in Rule 405 under the Securities
Act) of Xxxxxxx.
I understand that the Exchange Offer is being made in reliance on
interpretations contained in letters issued to third parties by the staff of the
Securities and Exchange Commission ("Commission"). These letters provide that
the Exchange Notes issued in exchange for the Outstanding Notes in the Exchange
Offer may be offered for resale, resold, and otherwise transferred by a Holder
of Exchange Notes, unless that person is an "affiliate" of Xxxxxxx within the
meaning of Rule 405 under the Securities Act, without compliance with the
registration and prospectus delivery provisions of the Securities Act. The
Exchange Notes must be acquired in the ordinary course of the Holder's business
and the Holder must not be engaging in, must not intend to engage in, and must
not have any arrangement or understanding with any person to participate in, a
distribution of the Exchange Notes.
If I am not a broker-dealer, I represent that I am not engaged in, and do
not intend to engage in, a distribution of the Exchange Notes. If I am a
broker-dealer that will receive Exchange Notes for my own account in exchange
for Outstanding Notes that were acquired as a result of market-making activities
or other trading activities (an "Exchanging Dealer"), I acknowledge that I will
deliver a prospectus in connection with any resale of the Exchange Notes;
however, by so acknowledging and by delivering a prospectus, I will not be
deemed to admit that I am an "underwriter" within the meaning of the Securities
Act.
Xxxxxxx has agreed that, subject to the provisions of the registration
rights agreement, the Prospectus, as it may be amended or supplemented from time
to time, may be used by an Exchanging Dealer in connection with resales of
Exchange Notes received in exchange for Outstanding Notes, where such
Outstanding Notes were acquired by such Exchanging Dealer for its own account as
a result of market-making activities or other trading activities, for a period
ending 180 days after the date on which the registration statement of which the
Prospectus is a part is declared effective or, if earlier, when all such
Exchange Notes have been disposed of by such Exchanging
Dealer. In that regard, if I am an Exchanging Dealer, by tendering such
Outstanding Notes and executing this Letter of Transmittal, I agree that, upon
receipt of notice from Xxxxxxx of the occurrence of any event or the discovery
of any fact which makes any statement contained or incorporated by reference in
the Prospectus untrue in any material respect or which causes the Prospectus to
omit to state a material fact necessary in order to make the statements
contained or incorporated by reference therein, in light of the circumstances
under which they were made, not misleading or of the occurrence of certain other
events specified in the registration rights agreement, I will suspend the sale
of Exchange Notes pursuant to the Prospectus until Xxxxxxx has amended or
supplemented the Prospectus to correct such misstatement or omission and has
furnished copies of the amended or supplemented Prospectus to the Exchanging
Dealer or Xxxxxxx has given notice that the sale of the Exchange Notes may be
resumed, as the case may be. If Xxxxxxx gives such notice to suspend the sale of
the Exchange Notes, it shall extend the 180-day period referred to above during
which Exchanging Dealers are entitled to use the Prospectus in connection with
the resale of Exchange Notes by the number of days during the period from and
including the date of the giving of such notice to and including the date when
Exchanging Dealers shall have received copies of the supplemented or amended
Prospectus necessary to permit resales of the Exchange Notes or to and including
the date on which Xxxxxxx has given notice that the sale of Exchange Notes may
be resumed, as the case may be.
Upon request, I will execute and deliver any additional documents deemed
by the Exchange Agent or Xxxxxxx to be necessary or desirable to complete the
assignment, transfer, and purchase of the Outstanding Notes I have tendered.
I understand that Xxxxxxx will be deemed to have accepted validly tendered
Outstanding Notes when Xxxxxxx gives oral or written notice of acceptance to the
Exchange Agent.
If, for any reason, any tendered Outstanding Notes are not accepted for
exchange in the Exchange Offer, certificates for those unaccepted Outstanding
Notes will be returned to me without charge at the address shown below or at a
different address if one is listed under "Special Delivery Instructions." Any
unaccepted Outstanding Notes which had been tendered by book-entry transfer will
be credited to an account at DTC, as soon as reasonably possible after the
Expiration Date.
All authority granted or agreed to be granted by this Letter of
Transmittal will survive my death, incapacity or, if I am a corporation or
institution, my dissolution and every obligation under this Letter of
Transmittal is binding upon my heirs, personal representatives, successors, and
assigns.
I understand that tenders of Outstanding Notes according to the procedures
described in the Prospectus under the heading "Exchange Offer - Procedures for
Tendering" and in the instructions included in this document constitute a
binding agreement between myself and Xxxxxxx subject to the terms and conditions
of the Exchange Offer.
Unless I have described other instructions in this Letter of Transmittal
under the section "Special Issuance Instructions," please issue the certificates
representing Exchange Notes issued in exchange for my tendered and accepted
Outstanding Notes in my name, and issue any replacement certificates for
Outstanding Notes not tendered or not exchanged in my name. Similarly, unless I
have instructed otherwise under the section "Special Delivery Instructions,"
please send the certificates representing the Exchange Notes issued in exchange
for tendered and accepted Outstanding Notes and any certificates for Outstanding
Notes that were not tendered or not exchanged, as well as any accompanying
documents, to me at the address shown below my signature. If both "Special
Issuance Instructions" and "Special Delivery Instructions" are completed, please
issue the certificates representing the Exchange Notes issued in exchange for my
tendered and accepted Outstanding Notes in the name(s) of, and return any
Outstanding Notes that were not tendered or exchanged and send such certificates
to, the person(s) so indicated. I understand that if Xxxxxxx does not accept any
of the tendered Outstanding Notes for exchange, Xxxxxxx has no obligation to
transfer any Outstanding Notes from the name of the registered Holder(s)
according to my instructions in the "Special Issuance Instructions" and "Special
Delivery Instructions" sections of this document.
SPECIAL ISSUANCE INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 4, 5 AND 6) (SEE INSTRUCTIONS 4, 5 AND 6)
To be completed only (i) if Outstanding Notes in a To be completed ONLY if the Exchange Notes
principal amount not tendered, or Exchange Notes issued in are to be issued or sent to someone other than
exchange for Outstanding Notes accepted for exchange, are you or to you at an address other than as
to be issued in the name of someone other than you, or indicated above.
(ii) if Outstanding Notes tendered by book-entry transfer
which are not exchanged are to be returned by credit to an [ ] Mail [ ] Issue (check appropriate boxes)
account maintained at the Book-Entry Transfer Facility. certificates to:
Issue Exchange Notes and/or Outstanding Notes to:
Name.............................................
Name................................................... (Type or Print)
(Type or Print)
Address..........................................
Address................................................
.................................................
........................................................ (Zip Code)
(Zip Code)
........................................................ .................................................
(Tax Identification or Social Security Number) (Tax Identification or Social Security Number)
(Complete Substitute Form W-9)
Credit unexchanged Outstanding Notes delivered by book-entry
transfer to the Book-Entry Transfer Facility set forth below:
Book-Entry Transfer Facility Account Number:
........................................................
SPECIAL BROKER-DEALER INSTRUCTIONS
[ ] Check here if you are a broker-dealer and wish to receive 10
additional copies of the Prospectus and 10 copies of any amendments
or supplements thereto.
Name ........................................
Address .....................................
.....................................
(Zip Code)
IMPORTANT
PLEASE SIGN HERE WHETHER OR NOT
OUTSTANDING NOTES ARE BEING PHYSICALLY TENDERED HEREBY
(Complete Accompanying Substitute Form W-9 on Last Page)
.................................................................................
.................................................................................
(Signature(s) of Registered Holders of Outstanding Notes)
Dated..................., 2005
(The above lines must be signed by the registered holder(s) of Outstanding Notes
as name(s) appear(s) on the Outstanding Notes or on a security position listing,
or by person(s) authorized to become registered holder(s) by a properly
completed bond power from the registered holder(s), a copy of which must be
transmitted with this Letter of Transmittal. If Outstanding Notes to which this
Letter of Transmittal relate are held of record by two or more joint holders,
then all such holders must sign this Letter of Transmittal. If signature is by a
trustee, executor, administrator, guardian, attorney-in-fact, officer of a
corporation or other person acting in a fiduciary or representative capacity,
then such person must (i) set forth his or her full title below and (ii) unless
waived by Xxxxxxx, submit evidence satisfactory to Xxxxxxx of such person's
authority so to act. See Instructions 1 and 5 regarding completion of this
Letter of Transmittal, printed below.)
Name(s).........................................................................
(Please Type or Print)
Capacity:.......................................................................
Address:.......................................................................
.................................................................................
(Include Zip Code)
Area Code and Telephone Number: ................................................
MEDALLION SIGNATURE GUARANTEE
(If Required by Instructions 1 and 5)
Certain signatures must be Guaranteed by an Eligible Institution.
Signature(s)Guaranteed by an Eligible Institution: .............................
(Authorized Signature)
.................................................................................
(Title)
.................................................................................
(Name of Firm)
.................................................................................
(Address, Include Zip Code)
.................................................................................
(Area Code and Telephone Number)
Dated:...................................................................., 2005
INSTRUCTIONS
PART OF THE TERMS AND CONDITIONS OF THE
EXCHANGE OFFER
1. DELIVERY OF THIS LETTER OF TRANSMITTAL AND OUTSTANDING NOTES. The tendered
Outstanding Notes or a confirmation of book-entry delivery, as well as a
properly completed and executed copy or facsimile of this Letter of Transmittal
and any other required documents must be received by the Exchange Agent at its
address listed on the cover of this document before 5:00 p.m., New York City
time, on the Expiration Date. YOU ARE RESPONSIBLE FOR THE DELIVERY OF THE
OUTSTANDING NOTES, THIS LETTER OF TRANSMITTAL AND ALL REQUIRED DOCUMENTS TO THE
EXCHANGE AGENT. EXCEPT UNDER THE LIMITED CIRCUMSTANCES DESCRIBED BELOW, THE
DELIVERY OF THESE DOCUMENTS WILL BE CONSIDERED TO HAVE BEEN MADE ONLY WHEN
ACTUALLY RECEIVED OR CONFIRMED BY THE EXCHANGE AGENT. WHILE THE METHOD OF
DELIVERY IS AT YOUR RISK AND CHOICE, XXXXXXX RECOMMENDS THAT YOU USE AN
OVERNIGHT OR HAND DELIVERY SERVICE RATHER THAN REGULAR MAIL. YOU SHOULD SEND
YOUR DOCUMENTS WELL BEFORE THE EXPIRATION DATE TO ENSURE RECEIPT BY THE EXCHANGE
AGENT. YOU MAY REQUEST THAT YOUR BROKER, DEALER, COMMERCIAL BANK, TRUST COMPANY
OR NOMINEE DELIVER YOUR OUTSTANDING NOTES, THIS LETTER OF TRANSMITTAL AND ALL
REQUIRED DOCUMENTS TO THE EXCHANGE AGENT. DO NOT SEND YOUR OUTSTANDING NOTES TO
XXXXXXX.
If you wish to tender your Outstanding Notes, but:
(a) your Outstanding Notes are not immediately available;
(b) you cannot deliver your Outstanding Notes, this Letter of
Transmittal and all required documents to the Exchange Agent
before the Expiration Date; or
(c) you are unable to complete the book-entry tender procedure
before the Expiration Date,
you must tender your Outstanding Notes according to the guaranteed delivery
procedure. A summary of this procedure follows, but you should read the section
in the Prospectus titled "Exchange Offer - Procedures for Tendering" for more
complete information. As used in this Letter of Transmittal, an "Eligible
Institution" is any participant in a Recognized Signature Guarantee Medallion
Program within the meaning of Rule 17Ad-15 of the Exchange Act.
For a tender made through the guaranteed delivery procedure to be valid,
the Exchange Agent must receive a properly completed and executed Notice of
Guaranteed Delivery or a facsimile of that notice before 5:00 p.m., New York
City time, on the Expiration Date. The Notice of Guaranteed Delivery must be
delivered by an Eligible Institution and must:
(a) state your name and address;
(b) list the certificate numbers and principal amounts of the
Outstanding Notes being tendered;
(c) state that tender of your Outstanding Notes is being made
through the Notice of Guaranteed Delivery; and
(d) guarantee that this Letter of Transmittal, or a facsimile of
it, the certificates representing the Outstanding Notes, or a
confirmation of DTC book-entry transfer, and all other
required documents will be deposited with the Exchange Agent
by the Eligible Institution within three New York Stock
Exchange trading days after the Expiration Date.
The Exchange Agent must receive your Outstanding Notes certificates, or a
confirmation of DTC book entry, in proper form for transfer, this Letter of
Transmittal and all required documents within three New York Stock
Exchange trading days after the Expiration Date or your tender will be invalid
and may not be accepted for exchange.
Xxxxxxx has the sole right to decide any questions about the validity,
form, eligibility, time of receipt, acceptance or withdrawal of tendered
Outstanding Notes, and its decision will be final and binding. Xxxxxxx'x
interpretation of the terms and conditions of the Exchange Offer, including the
instructions contained in this Letter of Transmittal and in the Prospectus under
the heading "Exchange Offer - Conditions," will be final and binding on all
parties.
Xxxxxxx has the absolute right to reject any or all of the tendered
Outstanding Notes if
(1) the Outstanding Notes are not properly tendered or
(2) in the opinion of counsel, the acceptance of those Outstanding Notes
would be unlawful.
Xxxxxxx may also decide to waive any conditions, defects, or invalidity of
tender of Outstanding Notes and accept such Outstanding Notes for exchange. Any
defect or invalidity in the tender of Outstanding Notes that is not waived by
Xxxxxxx must be cured within the period of time set by Xxxxxxx.
It is your responsibility to identify and cure any defect or invalidity in
the tender of your Outstanding Notes. Tender of your Outstanding Notes will not
be considered to have been made until any defect is cured or waived. Xxxxxxx
Xxxxxxx, the Exchange Agent nor any other person is required to notify you that
your tender was invalid or defective, and no one will be liable for any failure
to notify you of such a defect or invalidity in your tender of Outstanding
Notes. As soon as reasonably possible after the Expiration Date, the Exchange
Agent will return to the Holder any Outstanding Notes that were invalidly
tendered if the defect of invalidity has not been cured or waived.
2. TENDER BY XXXXXX. You must be a Holder of Outstanding Notes in order to
participate in the Exchange Offer. If you are a beneficial holder of Outstanding
Notes who wishes to tender, but you are not the registered Holder, you must
arrange with the registered Holder to execute and deliver this Letter of
Transmittal on his, her or its behalf. Before completing and executing this
Letter of Transmittal and delivering the registered Holder's Outstanding Notes,
you must either make appropriate arrangements to register ownership of the
Outstanding Notes in your name, or obtain a properly executed bond power from
the registered Holder. The transfer of registered ownership of Outstanding Notes
may take a long period of time.
3. PARTIAL TENDERS. If you are tendering less than the entire principal
amount of Outstanding Notes represented by a certificate, you should fill in the
principal amount you are tendering in the last column of the box entitled
"Description of Outstanding Notes." The entire principal amount of Outstanding
Notes listed on the certificate delivered to the Exchange Agent will be deemed
to have been tendered unless you fill in the appropriate box. If the entire
principal amount of all Outstanding Notes is not tendered, a certificate will be
issued for the principal amount of those untendered Outstanding Notes not
tendered.
Unless a different address is provided in the appropriate box on this
Letter of Transmittal, certificate(s) representing Exchange Notes issued in
exchange for any tendered and accepted Outstanding Notes will be sent to the
registered Holder at his or her registered address, promptly after the
Outstanding Notes are accepted for exchange. In the case of Outstanding Notes
tendered by book-entry transfer, any untendered Outstanding Notes and any
Exchange Notes issued in exchange for tendered and accepted Outstanding Notes
will be credited to accounts at DTC.
4. SIGNATURES ON THE LETTER OF TRANSMITTAL; BOND POWERS AND ENDORSEMENTS;
GUARANTEE OF SIGNATURES.
If you are the registered Holder of the Outstanding Notes tendered with
this document, and are signing this Letter of Transmittal, your signature must
match exactly with the name(s) written on the face of the Outstanding Notes.
There can be no alteration, enlargement, or change in your signature in any
manner. If certificates representing the Exchange Notes, or certificates issued
to replace any Outstanding Notes you have not tendered are
to be issued to you as the registered Holder, do not endorse any tendered
Outstanding Notes, and do not provide a separate bond power.
If you are not the registered Holder, or if Exchange Notes or any
replacement Outstanding Note certificates will be issued to someone other than
you, you must either properly endorse the Outstanding Notes you have tendered or
deliver with this Letter of Transmittal a properly completed separate bond
power. Please note that the signatures on any endorsement or bond power must be
guaranteed by an Eligible Institution.
If you are signing this Letter of Transmittal but are not the registered
Holder(s) of any Outstanding Notes listed on this document under the
"Description of Outstanding Notes Tendered," the Outstanding Notes tendered must
be endorsed or accompanied by appropriate bond powers, in each case signed in
the name of the registered Holder(s) exactly as it appears on the Outstanding
Notes. Please note that the signatures on any endorsement or bond power must be
guaranteed by an Eligible Institution.
If this Letter of Transmittal, any Outstanding Notes tendered or any bond
powers are signed by trustees, executors, administrators, guardians,
attorneys-in-fact, officers of corporations, or others acting in a fiduciary or
representative capacity, that person must indicate their title or capacity when
signing. Unless waived by Xxxxxxx, evidence satisfactory to Xxxxxxx of that
person's authority to act must be submitted with this Letter of Transmittal.
Please note that the signatures on any endorsement or bond power must be
guaranteed by an Eligible Institution.
ALL SIGNATURES ON THIS LETTER OF TRANSMITTAL MUST BE GUARANTEED BY AN
ELIGIBLE INSTITUTION UNLESS ONE OF THE FOLLOWING SITUATIONS APPLY:
- If this Letter of Transmittal is signed by the registered Holder(s) of the
Outstanding Notes tendered with this Letter of Transmittal and such
Holder(s) has not completed the box titled "Special Payment Instructions"
or the box titled "Special Delivery Instructions;" or
- If the Outstanding Notes are tendered for the account of an Eligible
Institution.
5. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If different from the name
and address of the person signing this Letter of Transmittal, you should
indicate, in the applicable box or boxes, the name and address where Outstanding
Notes issued in replacement for any untendered or tendered but unaccepted
Outstanding Notes should be issued or sent. If replacement notes for Outstanding
Notes are to be issued in a different name, you must indicate the taxpayer
identification or social security number of the person named.
6. TRANSFER TAXES. Xxxxxxx will pay all transfer taxes, if any, applicable
to the exchange of Outstanding Notes in the Exchange Offer. However, transfer
taxes will be payable by you (or by the tendering Holder if you are signing this
letter on behalf of a tendering Holder) if:
- certificates representing Exchange Notes or notes issued to replace any
Outstanding Notes not tendered or accepted for exchange are to be
delivered to, or are to be registered or issued in the name of, a person
other than the registered Holder;
- tendered Outstanding Notes are registered in the name of any person other
than the person signing this Letter of Transmittal; or
- a transfer tax is imposed for any reason other than the exchange of
Outstanding Notes according to the Exchange Offer. If satisfactory
evidence of the payment of those taxes or an exemption from payment is not
submitted with this Letter of Transmittal, the amount of those transfer
taxes will be billed directly to the tendering Holder. Until those
transfer taxes are paid, Xxxxxxx will not be required to deliver any
Exchange Notes required to be delivered to, or at the direction of, such
tendering Holder.
Except as provided in this Instruction 6, it is not necessary for transfer
tax stamps to be attached to the Outstanding Notes listed in this Letter of
Transmittal.
7. SUBSTITUTE FORM W-9. You must provide the Exchange Agent with a correct
Taxpayer Identification Number ("TIN") for the Holder on the enclosed Substitute
Form W-9. If the Holder is an individual, the TIN is his or her social security
number. If you do not provide the required information on the Substitute Form
W-9, you may be subject to 28% federal income tax withholding on certain
payments made to the Holders of Exchange Notes. Certain Holders, such as
corporations and certain foreign individuals, are not subject to these backup
withholding and reporting requirements. For additional information, please read
the enclosed Guidelines for Certification of TIN on Substitute Form W-9. To
prove to the Exchange Agent that a foreign individual qualifies as an exempt
Holder, the foreign individual must submit a Form W-8, Form W-8 BEN or other
similar statement, signed under penalties of perjury, certifying as to that
individual's exempt status. You can obtain the appropriate form from the
Exchange Agent.
8. VALIDITY OF TENDERS. All questions as to the validity, form,
eligibility (including time of receipt), acceptance and withdrawal of
Outstanding Notes tendered for exchange will be determined by Xxxxxxx, in its
sole discretion, which determination shall be final and binding. Xxxxxxx
reserves the absolute right to reject any or all tenders not properly tendered
or to not accept any particular Outstanding Notes which acceptance might, in the
judgment of Xxxxxxx or its counsel, be unlawful. Xxxxxxx also reserves the
absolute right to waive any defects or irregularities or conditions of the
Exchange Offer as to any particular Outstanding Notes either before or after the
Expiration Date (including the right to waive the ineligibility of any holder
who seeks to tender Outstanding Notes in the Exchange Offer). Xxxxxxx'x
interpretation of the terms and conditions of the Exchange Offer as to any
particular Outstanding Notes either before or after the Expiration Date
(including the Letter of Transmittal and the instructions thereto) shall be
final and binding on all parties. Unless waived, any defects or irregularities
in connection with tenders of Outstanding Notes for exchange must be cured
within such reasonable period of time as Xxxxxxx shall determine. Xxxxxxx
Xxxxxxx, the Exchange Agent nor any other person shall be under any duty to give
notification of any defect or irregularity with respect to any tender of
Outstanding Notes for exchange; nor shall any of them incur any liability for
failure to give such notification. Tenders of Outstanding Notes will not be
deemed to have been made until such defects or irregularities have been cured or
waived. Any Outstanding Notes received by the Exchange Agent that are not
properly tendered and as to which the defects or irregularities have not been
cured or waived will be returned by the Exchange Agent to the tendering holders,
unless otherwise provided in the Letter of Transmittal, as soon as practicable
following the Expiration Date.
9. WAIVER OF CONDITIONS. Xxxxxxx may choose, at any time and for any
reason, to amend, waive or modify certain of the conditions to the Exchange
Offer. The conditions applicable to tenders of Outstanding Notes in the Exchange
Offer are described in the Prospectus under the heading "Exchange Offer -
Conditions."
10. NO CONDITIONAL TENDER. No alternative, conditional, irregular or
contingent tender of Outstanding Notes on transmittal of this Letter of
Transmittal will be accepted.
11. XXXXXXXXX, LOST, STOLEN OR DESTROYED OUTSTANDING NOTES. If your
Outstanding Notes have been mutilated, lost, stolen or destroyed, you should
contact the Exchange Agent at the address listed on the cover page of this
document for further instructions.
12. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. If you have questions,
need assistance, or would like to receive additional copies of the Prospectus or
this Letter of Transmittal, you should contact the Exchange Agent at the address
listed in the Prospectus. You may also contact your broker, dealer, commercial
bank, trust company, or other nominee for assistance concerning the Exchange
Offer.
13. WITHDRAWAL. Tenders may be withdrawn only pursuant to the withdrawal
rights set forth in the Prospectus under the caption "Exchange Offer -
Withdrawal of Tenders."
TO BE COMPLETED BY ALL TENDERING HOLDERS
(SEE INSTRUCTION 7)
PART 1 - PLEASE PROVIDE YOUR TIN IN THE Social Security Number
SUBSTITUTE BOX AT RIGHT AND CERTIFY BY SIGNING AND OR
FORM W-9 DATING BELOW Employer Identification Number
--------------------------- ------------------------------------------------------------ ------------------------------
DEPARTMENT OF THE TREASURY PART 2 - Certification - Under penalties of PART 3 -
INTERNAL REVENUE SERVICE perjury, I certify that:
(1) The number shown on this form is my correct Taxpayer
Identification Number (or I am waiting for a number to Awaiting TIN
be issued to me) and
(2) I am not subject to backup withholding
PAYER'S REQUEST FOR either because I have not been notified by the Please complete the
TAXPAYER IDENTIFICATION Internal Revenue Service ("IRS") that I am subject to Certificate of
NUMBER (TIN) backup withholding as a result of failure to report Awaiting Taxpayer
all interest or dividends, or the IRS has notified me Identification
that I am no longer subject to backup withholding, and Number below.
(3) I am a U.S. person (including a U.S. resident alien).
Certificate Instructions - You must cross out item (2) in Part 2 above if you
have been notified by the IRS that you are subject to backup withholding because
of under reporting interest or dividends on your tax return. However, if after
being notified by the IRS that you were subject to backup withholding you
received another notification from the IRS stating that you are no longer
subject to backup withholding, do not cross out item (2).
SIGNATURE_____________________DATE_______________, 2005
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 28% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE REVIEW
THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED
THE BOX IN PART 3 OF THE SUBSTITUTE FORM W-9
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number
has not been issued to me, and either (a) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or (b)
I intend to mail or deliver an application in the near future. I understand that
if I do not provide a taxpayer identification number to the payor within 60
days, 28% of all reportable payments made to me thereafter will be withheld
until I provide a number.
______________________________ __________________________, 2005
Signature Date
CERTIFICATE FOR FOREIGN RECORD HOLDERS
Under penalties of perjury, I certify that I am not a United States
citizen or resident (or I am signing for a foreign corporation, partnership,
estate or trust).
______________________________ __________________________, 2005
Signature Date
INSTRUCTIONS FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER
(THE "GUIDELINES")
PURPOSE OF FORM.-A person who is required to file an information return with the
IRS must obtain your correct Taxpayer Identification Number ("TIN") to report
income paid to you, real estate transactions, mortgage interest you paid, the
acquisition or abandonment of secured property, or contributions you made to an
IRA. For most individuals, your taxpayer identification number will be your
Social Security Number ("SSN"). Use the form provided to furnish your correct
TIN and, when applicable, (1) to certify that the TIN you are furnishing is
correct (or that you are waiting for a number to be issued), (2) to certify that
you are not subject to backup withholding, and (3) to claim exemption from
backup withholding if you are an exempt payee. Furnishing your correct TIN and
making the appropriate certifications will prevent certain payments from being
subject to backup withholding.
If you are an individual, you must generally provide the name shown on your
social security card. However, if you have changed your last name, for instance,
due to marriage, without informing the Social Security Administration of the
name change, please enter your first name, the last name shown on your social
security card, and your new last name.
If you are a sole proprietor, you must furnish your INDIVIDUAL name and either
your SSN or Employer Identification Number ("EIN"). You may also enter your
business name or "doing business as" name on the business name line. Enter your
name(s) as shown on your social security card and/or as it was used to apply for
your EIN on Form SS-4.
You must sign the certification or backup withholding will apply.
HOW TO OBTAIN A TIN.-If you do not have a TIN, apply for one immediately. To
apply, get FORM SS-5, Application for a Social Security Card (for individuals),
from your local office of the Social Security Administration, or FORM SS-4,
Application for Employer Identification Number (for businesses and all other
entities), from your local IRS office.
Once you receive your TIN, complete the enclosed form and return it to us.
Please note that you will be subject to backup withholding at a 28% rate until
we receive your TIN.
FOR THIS TYPE OF ACCOUNT: GIVE NAME AND SSN OF:
--------------------------------------- ---------------------------
1. Individual The individual
2. Two or more individuals (joint The actual owner of the
account) account or, if combined
funds, the first individual
on the account(1)
3. Custodian account of a minor The minor(2)
(Uniform Gift to Minors
Act)
4. a. The usual revocable The grantor-trustee(1)
savings trust (grantor is
also trustee)
b. So-called trust The actual owner(1)
account that is not a
legal or valid trust
under state law
5. Sole proprietorship The owner(3)
6. Sole proprietorship The owner(3)
7. A valid trust, estate, or pension Legal entity(4)
trust
8. Corporate The corporation
9. Association, club, religious, The organization
charitable, education, or other
tax-exempt organization
10. Partnership The partnership
11. A broker or registered nominee The broker or
nominee
12. Account with the Department of The public entity
Agriculture in the name of a public
entity (such as a state or local
government, school district, or
prison) that receives agricultural
program payments
(1) List first and circle the name of the person whose number you furnish
(2) Circle the minor's name and furnish the minor's SSN
(3) Show your individual name. You may also enter your business name. You may
use your SSN or EIN.
(4) List first and circle the name of the legal trust, estate, or pension
trust. (Do not furnish the TIN of the personal representative or trustee unless
the legal entity itself is not designated in the account title.)
NOTE: If no name is circled when there is more than one name, the number will be
considered to be that of the first name listed.
WHAT IS BACKUP WITHHOLDING?-Persons making dividend payments to you after 1992
are required to withhold and pay to the IRS 28% of such payments under certain
conditions. This is called "backup withholding."
If you give the requester your correct TIN, make the appropriate certifications,
and report all your taxable interest and dividends on your tax return, your
payments will not be subject to backup withholding. Payments you receive will be
subject to backup withholding if:
1. You do not furnish your TIN to the requester;
2. The IRS notifies the requester that you furnished an incorrect TIN;
3. You are notified by the IRS that you are subject to backup withholding
because you failed to report all our interest and dividends on your tax return;
4. You do not certify to the requester that you are to subject to backup
withholding under 3 above; or
5. You do not certify your TIN.
PAYEES AND PAYMENTS EXEMPT FROM BACKUP WITHHOLDING.-The following is a list of
payees exempt from backup withholding and for which no information reporting is
required.
(1) A corporation. (2) An organization exempt from tax under section 501(a), or
an IRA, or a custodial account under section 403(b)(7). (3) The United States or
any of its agencies or instrumentalities. (4) A state, the District of Columbia,
a possession of the United States, or any of their political subdivisions or
instrumentalities. (5) A foreign government or any of its political
subdivisions, agencies, or instrumentalities. (6) An international organization
or any of its agencies or instrumentalities. (7) A foreign central bank of
issue. (8) A dealer in securities or commodities required to register in the
United States or a possession of the United States.(9) A real estate
reinvestment trust. (10) An entity registered at all times during the tax year
under the Investment Company Act of 1940. (11) A common trust fund operated by a
bank under section 584(a). (12) A financial institution. (13) A middleman known
in the investment community as a nominee or listed in the most recent
publication of the American Society of Corporate Secretaries, Inc., Nominee
List. (14) A trust exempt from tax under section 664 or described in section
4947.
Payments of dividends generally not subject to backup withholding include the
following:
- Payments to nonresident aliens subject to withholding under section 1441.
- Payments to partnerships not engaged in a trade or business in the United
States and that have at least one nonresident partner.
- Payments of patronage dividends not paid in money.
- Payments made by certain foreign organizations.
PENALTIES
FAILURE TO FURNISH TIN.-If you fail to furnish your correct TIN, you are subject
to a penalty of $50 for each such failure unless your failure is due to
reasonable cause and not to willful neglect.
CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING.-If you make a
false statement with no reasonable basis that results in no backup withholding,
you are subject to a $500 penalty.
CRIMINAL PENALTY FOR FALSIFYING INFORMATION.-Willfully falsifying certifications
or affirmations may subject you to criminal penalties including fines and/or
imprisonment.
MISUSE OF TINS.-If the requester discloses or uses TINs in violation of Federal
law, the requester may be subject to civil and criminal penalties.
